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Coyotes-Wolves-Cougars.blogspot.com

Grizzly bears, black bears, wolves, coyotes, cougars/ mountain lions,bobcats, wolverines, lynx, foxes, fishers and martens are the suite of carnivores that originally inhabited North America after the Pleistocene extinctions.
This site invites research, commentary, point/counterpoint on that suite of native animals (predator and prey) that inhabited The Americas circa 1500-at the initial point of European exploration and subsequent colonization.
Landscape ecology, journal accounts of explorers and frontiersmen, genetic evaluations of museum animals, peer reviewed 20th and 21st century research on various aspects of our "Wild America" as well as subjective commentary from expert and layman alike. All of the above being revealed and discussed with the underlying goal of one day seeing our Continent rewilded.....Where big enough swaths of open space exist with connective corridors to other large forest, meadow, mountain, valley, prairie, desert and chaparral wildlands.....Thereby enabling all of our historic fauna, including man, to live in a sustainable and healthy environment. - Blogger Rick

9th Circuit Court Reinstates Roadless Rule for Tongass

By MARY KAUFFMAN

July 29, 2015
Wednesday PM

(SitNews) Ketchikan, Alaska - The U.S. Court of Appeals for the 9th Circuit struck down a Bush administration exemption of the Tongass National Forest from the “Roadless Rule,” a landmark conservation rule adopted in 2001 to protect nearly 60 million acres of wild national forests and grasslands from new road building and logging. In a 6-5 decision today, the court held the U.S. Forest Service under the Department of Agriculture failed to provide a reasoned explanation for reversing course on the Tongass. It concluded the Roadless Rule “remains in effect and applies to the Tongass.”

This case originated in 2009 when a diverse coalition of Alaska Native, tourism industry, and environmental organizations, represented by attorneys from Earthjustice and Natural Resources Defense Council, challenged the Bush Administration’s 2003 rule “temporarily” exempting the Tongass from the Roadless Rule which would block expensive and controversial new logging roads and clearcuts in intact forests while allowing other economic development — including hydropower, transmission lines, mining, and tourism projects — to proceed.

The Tongass, occupying most of Southeast Alaska, is the nation’s largest national forest. In 2011 a federal judge in Alaska ruled in the coalition’s favor, vacating the Tongass exemption and reinstating the Roadless Rule’s application to the Tongass. The State of Alaska then appealed the decision to the 9th Circuit Court of Appeals, where a three-judge panel last year reversed the Alaska judge’s opinion by a 2-1 split vote. Today’s order affirmed the district court’s decision and maintains protections for the roadless areas of the Tongass.

Senator Bert Stedman (R-Sitka) said in a prepared statement, “I am disappointed in the decision of the 9th Circuit Court of Appeals regarding the Roadless Rule and the impacts it will have on the Tongass National Forest. As I have stated in the past it isolates our communities in the region and does not give us the ability to access our resources for future economic development. The Roadless Rule will continue to hinder our ability to keep up our standard of living by placing restrictions on access and transportation.”

Earthjustice attorney Tom Waldo said, “Today’s decision is great news for the Tongass National Forest and for all those who rely on its roadless areas. The remaining wild and undeveloped parts of the Tongass are important fish and wildlife habitat and vital to residents and visitors alike for hunting, fishing, recreation, and tourism, the driving forces of the regional economy."

“This decision saves the Tongass - again - and not just the Tongass, but hopefully, all old growth forests,” said Niel Lawrence, senior attorney and Alaska director for the Natural Resources Defense Council. “It ensures that all of this forest’s wildlands will be saved from timber sales and destructive logging roads.”

“We applaud the court for striking down the misguided Bush-era plan to exempt the Tongass National Forest from the Roadless Rule. Today's decision ensures that this stunning wilderness will continue to be protected for the wildlife who inhabit it and those who enjoy it — for this generation and those that follow,” said Aaron Isherwood, Managing Attorney for the Sierra Club.

“The roadless areas on the Tongass are important habitat for wildlife species found only in America's rainforest,” said Rebecca Noblin, Alaska director of the Center for Biological Diversity. “This decision protects some of the last remaining stands of old-growth temperate rainforest in the world. Now it’s time to put a stop to all old-growth logging on the Tongass to save unique wildlife like Alexander Archipelago wolves.”

“The Tongass’ roadless rainforests are a national treasure, and the last, best intact wildlands in our bioregion,” said Gabriel Scott, Alaska legal director for Cascadia Wildlands. “We are pleased with the court’s decision, and urge the State of Alaska to stop with these wasteful legal battles and recognize that it is a privilege, not a burden, to conserve these national treasures for future generations.”

“Roadless areas in the Tongass provide important habitat for at-risk species, including the Alexander Archipelago wolf,” said Senior Policy Advisor for Federal Lands Peter Nelson at Defenders of Wildlife. “Today's decision is a pivotal win for the conservation of wildlife, watersheds and forests in the Tongass.”

“The roadless rule will help small businesses like ours,” said Hunter McIntosh of The Boat Company, which operates a small tour business in the region. “The natural values of intact watersheds are essential for the visitor industry in Southeast Alaska. Very few folks will pay to go see clearcuts and decaying logging roads. There are thousands of jobs in Southeast Alaska in recreation and tourism. And there are thousands more in the seafood industry, which depends critically on salmon spawning streams in the old growth forests of the Tongass.”

James……………….I applaud your historical efforts,,,,,,and also am a realist to know that much of the 40% saved land was deemed to steep or too difficult to build on, not because everyone on the Calabasas Board was an altruist about saving open space

,,,,,,,I am a 16 year resident in Calabasas myself and saw how outside folks from the West Side(Rob Reiner and pals), etc, etc came forth to fight for Ahmason, well outside their neighborhoods…………………We need that type LARGE AND IN CHARGE effort spearheaded by you and colleagues

The Malibu Canyon corridor is more than just a Calabasas neighborhood,,,,,,,,,,,,,It can and should be a full L.A. effort to keep as green as possible…………..
Malibu State Park............the Malibu Canyon roadway should reflect the same beauty as the Park itself

I am not just sounding off,,,,,,,,,,,,,,,,,,attaching testimonials, opinions, legal precedent examples of what a united opposition to "development as usual" can accomplish…………..

In my business, it is not just good enough to say that I set a sales $$ record selling FRIENDS, 2.5 MEN, BIG BANG THEORY AND ELLEN DEGENERES TO TV STATIONS ACROSS AMERICA……………My Boss wants to know what I am going to do tomorrow to earn my keep……………..

Respectively, your historical record is applauded,,,,,,,,,,,,,,today and tomorrow you and colleagues as elected leaders have a new game to play in,,,,,,,,,,,,,,,and score runs in………………finding creative ways to keep Malibu Canyon green!

I am trying to encourage action above and beyond………………Ahmason was thought to be a lost cause,,,,,,,,,,,,the land behind the fire station at Mureau and Malibu Canyon could have gone to development,,,,,,,,,,,,,,,,,,,but neither did,,,,,,,,,,,,,,,,,,,CANDIDLY, NOT DUE TO CALABASAS EFFORT ONLY,,,,,,,,,,,,,,,,,,,,,,,,,,,,

SO WHY NOT PUT A MORATORIUM ON BUILIDING,,,,,,,,,,,,,,SEEK EVERY REGIONAL POLITICAL AND ENVIRONMENTAL ORGANIZATION'S ENDORSEMENT AND ACTION TO FIND THE WAY NOT TO ALLOW THE GATEWAY TO THE MALIBU CANYON TO BECOME AS FORMER NY GIANT FOOTBALL COACH

BILL PARCELLS WAS FOND OF SAYING: J"AG — "just another guy"(JUST ANOTHER COMMERCIAL STREET THAT LESSENS THE LONG TERM VALUE OF CALABASAS………………….

If you let us vote on a moratorium, I am fully confident that residents would vote to halt the proposed building.

There was never a piece of land that was made into a Park or Wilderness(regardless of how hard developers fought it at the time of creation) that was ever seen as a mistake 10, 20, 50 and 100 years later………….Ever, anywhere in America.

1. I served on the City Council during the time period when we did in fact win the very uphill battles against Ahmanson Ranch, Soka University, and many other proposed developments. I am well aware of the need to preserve open space, having spent my entire life in this region. No one supports the concept of "open space" more than I, who co-authored and was the primary sponsor of the Open Space Initiative of 2005, the Historic Preservation Ordinance of 2008, and the Open Space Initiative of 2015 (which will appear on your ballot in the Calabasas Municipal Elections later this year. Since 2003, I have also served as the City Council's liaison with respect to open space acquisition, (e.g., overseeing the acquisition of hundreds of acres of additional land for open space protection).

2. To the extent possible, I have always supported the conversion of as much land as possible to permanent open space. Fully 43% of all territory within our 14 square mile land mass is now permanent open space, a marked increase since incorporation in 1991.

3. The foregoing having been said, the City has no mechanism by which to convert every remaining parcel of land to open space, especially where pre-existing zonings and entitlements are already in place (many pre-dating cityhood). That being said, I am willing to entertain any realistic means of adding to our open space inventory, should you have any specific proposals in mind.

To follow up further after my meeting with Fred and my correspondence with the two of you, "Food for thought" below..................At this point in the life curve of Calabasas, it is my opinion(and if put to a vote across Calabasas, my guess, the likely opinion of most) that

the 5, 6, 7 or however many remaining open space parcels should not be developed...............

That in fact, a concerted(more than cursory and more than just once) effort to reach out to the local, state and Environmental Groups that saved Ahmanson Ranch, the property behind the Fire House at the juncture of Malibu Canyon and Mureau Road, etc, etc be undertaken to ensure that the"common interest in these lands take precedence over long-term private use.....That in fact the Village of Calabasas should invok the principle of jus publicum — that these remaining open space parcels are of so common a nature they defy private ownership!!!

As I have reiterated to you, from my "perch", if in fact you(and all of us who live in this part of the Valley) are truly committed to having Calabasas(Agoura, Oak Park, Westlake Village) stand out as truly "green" and differentiated from the ugly, over developed and eyesore balance of the San Fernando Valley, it is time to open your eyes to beauty and not just short term balance sheet metrics...................

We are fortunate to live in an affluent region that can do things somewhat differently from the older towns in the region whose leaders allowed a pell mell sell off of land and allow a hodge-poge rubble to take over the land.

Once again, appreciate your time and consideration on this important issue.

Not everything goes back solely to a balance sheet................My 40 years of work experience in simultaneously generating healthy financial returns right alongside esthetically pleasing

products saids, YES YOU CAN SAVE OUR OPEN SPACE,,,,,,,,,,,,,,,,,,,,IF YOU TRULY WANT TO.

Best.

Rick Meril

Calabasas Resident

MALIBU CANYON PARK …………………The remaining open parcels coming off the 101 Freeway straight across to the Pacific Coast Hwy should remain Open Space----we should be marketing Calabasas as the GATEWAY TO THE SANTA MONICA NATIONAL PARK, NOT PROMOTING IT AS A HOTEL AND CAR DEALERSHIP DESTINATION,,,,,,,,,,,,,,,,,,WHEN SO MUCH OF THAT ALREADY EXISTS WITHIN MINUTES OF CALABASAS ALREADY

The California Supreme Court, invoking the Public Trust Doctrine, ruled against Los Angeles and for the lake, extending the state’s public trust authority to the control of water diversions from non-navigable tributaries of a navigable lake. The decision asserted that common interest in some resources take precedence over long-term private use and invoked the principle of jus publicum — that certain resources are of so common a nature they defy private ownership. It was a triumphant expansion of existing case law, building on the 1971 California state Supreme Court case of Marks v. Whitney, which determined that public trust values included not only tidelands, lakes, rivers, and riverbeds, but also wildlife habitat, recreational value, and the sheer beauty of place.

The nineteenth-century oyster wars were not won in the courtroom alone, nor was the shoreline of Chicago, Mono Lake, or the Waiahole Ditch. They were all preceded by the public protest of “commoners” demanding that government exercise its public trust mandate. It’s important to realize that public trust litigation is unlikely to succeed in the absence of community activism and public education. As public trust legal scholar Michael Warburton notes, “The Doctrine is too valuable a public resource to leave with the legal profession, particularly at a time when so few of my colleagues are defending public interests and resources are being privatized on a truly massive scale.”

And why shouldn’t a broad spectrum of protestors come out to protest the rampant enclosure of the commons that is unfolding today? It seems to me that this doctrine, and the whole notion of an expanded commons, should be able to transcend the traditional right-left, public-private divisions that have long plagued debate over property and the commons. We’re talking here about things that people of any and all political persuasions must value — air, water, privacy, silence, knowledge, sunlight, soil, and the essential inviolability of childhood.

In this regard it would be wise to view the Public Trust Doctrine as more than a legal construct, for it is also a philosophy, a way of thinking that sees the public good as an ideal to be pursued. Does not the fate of humanity lie, as it always has, in our care of the commons?

From: Rick Meril [mailto:rick.meril@gmail.com]Sent: Friday, July 03, 2015 9:44 PMTo: Calabasas Town CouncilSubject: It is not too late to re-evaluate and reach the conclusion that the 5 remaining parcels of land now zoned for developemt are more valuable to Calabasas as open space

Wanted to thank you again for engaging me in conversation regarding the undeveloped land parcels currently tabbed for developement in Calabasas.............Understanding and digesting all that you commented on, I ask that you consider the following before greenlighting development on either side of the gas station on Malibu Canyon

Burlington, Vermont did a deep dive into the benefits of development versus the benefits of open space to their city.............Many of their findings echo some of my commentary to you this afternoon regarding not feeling that at this point in the Calabasas life curve, development is not the positive course of action that it might have been 10, 15 and 20 years ago--In fact, it might be a negative both in the short and long term for area residents.

I quote from their findings:

Studies in nearby Massachusetts and Connecticut show that on average, the residential property tax rate is higher in towns and cities with more residents, commercial and industrial property and jobs, and lower in places where there are more acres of open land per capita. Why? “Cows don’t go to school” is an old adage that explains most of why residential development often is a net loss for municipalities. The average homeowner will often pay less in annual property taxes than the cost of schooling his or her children alone for that same period, much less the additional costs of police and fire services, snow removal, sewer and water projects, etc. Plus, as a community grows, the per person cost of providing services has actually been found to increase.

As towns that were once small enough to need only part volunteer or part time public safety forces upgrade to full page 9 Open Space Protection Plan Value “What is the value of peace of mind? of clean air? of quiet times? of watching a tree grow? of hearing a heron or a flock of geese? of clean water? Thank you.” “Open space is an acknowledgment and recognition of our necessary and sacred relationship with the planet. Without it we ultimately wither and die.” “Open space is important for getting in touch with yourself and with nature and for quiet exercise and the appreciation of beauty.” “The value of [open space] is huge. Protecting and increasing natural areas increases home values, keeps people living here, and raises the quality of life.”

. Giving land conservation a high priority encourages more cost-ef priority encourages more cost-efficient ficient development development 3. Communities with well thought-out land protection programs may improve their protection programs may improve their bond ratings and become a more attractive place for businesses Q: What is the value of open space to you? --Some responses from Burlington residents A: time, as small unpaved roads are converted to paved roads or highways, or as development branches into previously unserviced areas, public services are forced to spend proportionately more just to keep up. Retail or industrial development, once thought to be tax-positive for cities and towns, may also bring the need for more public safety, transportation, and other services, due in part to their direct use needs, but also due to a high correlation between these types of development with increased residential development -- homes following jobs...which accounts for why even towns with higher percentages of retail and industrial tax bases often have higher tax burden than those with less.

. Open space increases property values and the desirability of cities and towns “Economic growth and development must take place, and be maintained over time, within the limits set by ecology in the broadest sense--by the interrelations of human beings and their works, the biosphere and the physical and chemical laws that govern it...It follows that environmental protection and economic development are complementary rather than antagonistic processes.” --William D. Ruckelshaus,

“Toward a Sustainable World” As early as the 1850’s, landscape architect Frederick Law Olmsted justified the purchase of land for New York’s Central Park by noting that the rising value of adjacent property would produce enough in taxes to pay for the park. By 1864, Olmsted could document a $55,880 net return in annual taxes over what the city was paying in interest for land and improvements. By 1873, the park + which until then had cost approximately $14 million + was responsible for an extra $5.24 million in taxes each year.

Between 1980 and 1990, the percentage of Denver residents who said they would pay more to live near a greenbelt or park rose from 16 percent to 48 percent. In a June 1995 article from the journal Planning, William Lucy and David Phillips expose the reality that suburbs are increasingly facing the same decline, and for the same reasons, that cities have been experiencing for some time. “Decline” was measured in this study as a reduction in the median family income. The housing ages, consumers demand newer and larger units, changes make older neighborhoods less attractive, and investment declines. They also explore the question of why some cities and suburbs in the D.C. area did not decline, or at least not as rapidly as others. Their conclusion was that combination of good planning, transit and preservation were keys to the winners’ success. - the winner’s maintained a sense of place.

One particular case in point was the town of Greenbelt, notable for its park and greenway systems. Despite the fact that between 1960 & 1990 the percentage of renters in the community increased dramatically (from two in five to four in five), that the town tripled in size, and nine of its neighboring communities’ median income rate dropped between 20 and 42%, Greenbelt’s dropped only 3.6% in that time. Cities such as Portland, Minneapolis, Toronto, and more recently Chattanooga, that are often studied as good examples, are doing the same things, avoiding sprawl by creating healthy city centers and investing public funds to protect natural resources in and around the city.

A recent article in the Burlington Free Press reported that visitors now pump more than $3 billion into Vermont’s economy. The University of Vermont recently completed a study of tourism and the economy of Vermont. This study concluded that “Vermont has become one of the most travelexpenditure-dependent economies in the United States in the 1990s.” 24 A 1991 survey by the Division of Economics in the U.S. Fish and Wildlife Service notes that wildliferelated recreation is one of the most popular forms of recreation in the United States, boasting annual participation at 109 million, 3 million more than total attendance for all major league baseball, football, basketball and hockey games in the U.S

. Natural areas, scenic and historic landscapes, and recreation in nature are growing tourism niches, and investment in the protection of these resources is good business practice. Conversely, taking these assets for granted can have devastating effects on an economy

Fred, thanks for doing some further thinking on all of this and I wish you and family

a very happy 4th.

Rick(while not an actual "Village resident", as concerned as anyone within the city limits

of the future look, feel and economic value of our beautiful part of Los Angeles.

From:rick meril [mailto:rick.meril@gmail.com]Sent:Saturday, June 20, 2015 10:16 PMTo:Calabasas Town CouncilSubject:degradation of our quality of life

Gentlemen:

In the classic1982 Star Trek film, THE WRATH OF KHAN, the iconic Mr. Spock(Leonard Nimoy) says: "Logic clearly dictates that the needs of the many outweigh the needs of the few,,,,,,,,,with Capt. Kirk(William Shatner) responding,,,,,"Or the one."; The June 4, 2015 Acorn Newspaper article entitlted: "Calabasas leaders navigate choppy financial waters"has me truly concerned that in fact "the needs of the few",,,,,,,,,or possibly even" the needs of the one" are trumping the quality of life "needs of the many."

Are we looking to create another Auto Mall 10 minutes down the road from the gargantuan 1000 Oaks Auto Mall...........Why is there a need to do that in Calabasas?............And if the car of your choice is not in 1000 Oaks, Keyes on Van Nuys Blvd exists as a "Disneyworld" destination for your auto needs.

; Are the neighborhoods surrounding the 1000 Oaks Auto Mall and Van Nuys Blvd Auto Bazaar been enhanced by Auto Dealerships? ,,,,,,,,,,,,Or conversely, have they drowned both in esthetic and home owner value by "tearing down paradise and putting in a parking lot?"

Will semi rural and narrow Calabasas Road and Malibu Canyon, the Gateway to the San Fernando Mountains National Park be enhanced by multiple car dealerships and hotels when Occupancy rates clearly state we have too many hotels now?.... Will the additional traffic from additional car dealerships and hotels add further to the malaise that exists at rush hour daily off of Mureau Road onto Calabasas Road,,,,,,,,,,,and during a good part of the day on Malibu Canyon Road starting at the Malibu Canyon/Agoura Road traffic light intersection(the intersection where the ugly and failing Strip Mall abuts the Albertsons Supermarket and McDonalds?

If we had a public referendum on the above questions, I am confident that the residents of Calabasas would reject more hotels and car dealerships,,,,,,,,,,And if that meant either spending less on other projects or voting to contribute additional $$ for what a majority of residents really wanted, people would believe this the better paradigm for our Village to follow.

; Calabasas resident Carl Ehrlich recently noted in his Letter to the Editor in the June 11 Acorn newspaper that over the past two years, the average occupancy rate of the exisitng hotels in Calabasas was under 60%, an average of 176 unused rooms during 2013 and 2014.

; Can we have a public election on this issue and halt the proposed Car and Hotel building in the most rural part of our Village so that the people can be heard,,,,,,,,,,,,,"the many", "not the few",,,,,,,,,,,,,,and certainly, "not the one!"

Guest Commentary: This is no time to give up on America's national treasures

By Maureen Finnerty

POSTED: 07/23/2015 01:45:27 PM MDT

We heard it again earlier this month when President Obama designated three major sites in the Western U.S. as national monuments: We should stop adding new national parks and other protected areas until we can pay for the ones we have now. Others have suggested hiking visitor fees so that those who use the parks and national monuments pay the freight for maintaining them.

There is no denying that many of America's national parks and historic places are in disrepair today or offering shortened visitor hours, fewer interpretive guides, and other services that should make a visit to one of our national crown jewels a special experience. This is a tragedy, but it is no reason to give up on preserving more of what makes America unique.

The reason we add a park is because something of outstanding value to our nation's heritage is in danger of damage or outright loss. That imminent destruction is, most often, human plans to pave it over or tear it up in the quest for minerals or real estate development. Precluding the possibility of new parks says that we have already protected everything that will ever be worth protecting. That's preposterous.

Of course it would be better if we addressed all unmet national park and historic site goals. We should rebuild roads, replace roofs on historic buildings and restore unglamorous, but vital, utility systems. We should also underwrite scientific evaluation and monitoring that will assure the landscapes and the plants and animals on them can survive and even thrive.

It is troubling that, as a nation, we lack the political will to foot the bill to protect and restore our shared heritage. This isn't a question of available funding. The amount of what we need to do to fix our parks is staggering when compared to anyone's household budget, but minuscule when compared to what it costs to run a mighty nation. We can afford it. However, we have been choosing, politically, not to do so.

Why not just jack up the cost of entering a national park? In fact, fees create a cost barrier that excludes the youth and lower-income people that are under-represented among our park users today. Thus, they limit who can benefit from the opportunity to experience firsthand the natural and historical heritage that makes America unique.

It may be true that fees are a minimal barrier to those who reach remote Yellowstone or the great parks of Alaska, but most park areas actually lie within easy reach of urban populations, for whom an admission fee must may be balanced against child-care costs or household expenses. Admittance fees make the public pay for what their taxes should already cover — access to their National Parks. Raising the fees to higher levels is the same thing as putting out the "unwelcome mat" to millions of Americans.

Creating new parks and designating new national monuments is a priceless opportunity to protect special places and tell our nation's most heartfelt stories for generations yet to come. So stop acquiring parks? Stop protecting new national monuments? No. The impulse to preserve the best of those places that make America unique is fully appropriate, no matter how shabbily our government chooses to treat them at the moment.

Maureen Finnerty is the chair of the Executive Council of the Coalition to Protect American's National Parks, a group of former NPS employees that represents over 30,000 years of experience managing and protecting National Parks. A 32-year employee of the National Park Service, she is also the past Superintendent of Everglades National Park and Olympic National Park.

In Law We Trust

in the early 1900s, a company known as Waiahole Water constructed an elaborately engineered ditch and tunnel system across the Hawaiian island of O’ahu. Its purpose was to channel stream water from the island’s windward, rainy side to sugar plantations on its drier side. By the 1990s, the ditch was delivering an average of twenty-seven million gallons a day to leeward O’ahu, usurping water that had once been used by small taro farms on the windward side. The so-called Waiahole Ditch left these traditional farmers high and dry.

In 1993, Amfac, the island’s last big sugar producer, ceased operations, and a legal battle over the water ensued. Native groups, represented by the environmental law firm Earthjustice, fought to restore the streams and their traditional uses, while suburban developers and their lawyers fought to keep the water flowing through the Waiahole Ditch for use on golf courses, and for condominiums and new hotels. The state’s Commission on Water Resources held seven months of hearings in the mid-’90s, then ruled that twenty percent of the flow diverted via the ditch would be restored to the eastern streams. The rest, they said, could be used for commercial purposes on the west side of the island.

This ruling was a minor victory, as millions of gallons of water were restored to the original watercourse and some small farms returned to production. However, Earthjustice appealed the decision to the state Supreme Court, which in August of 2000 ruled in favor of the Native Hawaiians. The court ordered the cancellation of all permits the commission had issued to developers for water withdrawals, citing a little-known legal principle called the Public Trust Doctrine, which says that common resources such as water are to be held in trust by the state for the use and enjoyment of the general public, rather than private interests.

This idea of the public trust has a long and venerable history.

During its first millennium and a half, this edict was used almost exclusively to protect the public’s interest in one very vital aspect of the commons: water, and sometimes land covered by water. As Justinian had ruled, navigable water, whether in the sea or flowing to it, was, along with the shorelines, beaches, and river bottoms, the common property of a nation’s citizens, owned by everyone and no one at once, an unwritten public easement protected by their steward — the state.

It’s a critical time for the concept of the public trust, because the commons is being enclosed in ways that were never before possible. These enclosures are crossing new boundaries, invading areas so intangible that they are rarely even recognized as part of the commons — from gene pools to the farthest reaches of outer space. The expansion of intellectual property rights into the rainforest, the patenting of life forms, the placement of weapons in space, the giveaway of broadcast spectra, the commodification of news and information, the commercial invasion of childhood, and the temptation to privatize almost anything are just a few of the many new threats to the commons.

Through the wonders of biotechnology the enclosers have moved inside our very beings. DNA is being privatized, along with individual genes. So are our minds, since it is almost impossible for human eyes and ears to escape the hydra of infinite advertising. About the only aspect of human existence that has not come under threat of enclosure is the spoken word, and that is only because no one has figured out how to copyright it.

Given all these many invasions, and potential invasions, there are reasons to believe that the Public Trust Doctrine may have an increasingly important role to play in defending those aspects of our environment that rightfully belong to all of us.

OVER THE COURSE OF ITS FIFTEEN-HUNDRED YEAR HISTORY, use of the Public Trust Doctrine has waxed and waned, depending on political climates and attitudes toward the commons. Justinian’s original Code and Institutes remained the law of the Roman Empire until it collapsed in ruin and decadence. In the wake of that long and gradual demise, the kings and feudal lords of Europe ruled their domains by fiat, dispensing public lands, streams, and beaches to loyal baronage. But when serfs and commoners grew discontented with the regimes that deprived them of food and firewood, liberal noblemen began to examine and consider the Justinian Code. Thus the doctrine of public trust re-emerged and spread in various forms into the common law of nations that had once been part of Roman and Byzantine political geography.

By the eleventh century a French law had been decreed which said that “the public highways and byways, running water and springs, meadows and pastures, forests, heaths and rocks are not to be held by Lords; nor are they to be maintained in any other ways than that their people may always be able to use them.” Two centuries later King Alfonzo X of Spain followed suit and added harbors to the list of public domains established by the French.

In England, the Justinian doctrine was recodified in the Magna Carta and forced upon King John in 1225 after his defeat at the battle of Runnymede. The treaty stipulated that neither he nor any future king could grant private hunting and fishing rights to favored earls and dukes, thereby cutting off the commons from people who relied upon them for their livelihood.

As the Public Trust Doctrine was eventually interpreted in England, the king actually owned public lands, but held them in trust for the public. Thus the notion of “sovereign” property was born, and with sovereignty under the Public Trust Doctrine came the inescapable duty of state stewardship, a concept that survives today in all manifestations of the doctrine. The Colonial Ordinance of 1647 stipulated that government could not relinquish its public trust obligations to a private party or a popular vote — an interpretation of the doctrine that was recently invoked in several states by trappers seeking constitutional protection from referenda prohibiting leg-hold traps.

As new colonies were created in North and Meso-America by English, French, and Spanish kings, “the doctrine of the public trust,” as it was then known, was adopted without argument as common law. When new states joined the original thirteen American colonies under the rule of equal footing, they too were bound by a doctrine that granted state governments sovereign rights to common land and sovereign responsibility for its care. The idea of the public trust was synonymous with America’s promise of freedom, and several states eventually wrote some form of the ancient code directly into their constitutions. These interpretations were based on English, French, or Spanish common law, depending on the nationality of the colonists.

Take for instance Article 1, section 27 of the Pennsylvania state constitution:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources the Commonwealth shall conserve and maintain them for the benefit of all the people.

Sound familiar?

DURING THE EARLY NINETEENTH CENTURY, the impoverished children of New Jersey commoners began appearing at council meetings in towns and cities along the state’s coast and waterways. After patiently awaiting their turn to speak, they testified that the livelihood of their families was being threatened by wealthy oyster planters who had persuaded local courts to uphold the privatization of coastal and estuarial oyster beds from which the children’s parents had freely gathered food. Their plight aroused the compassion of town councilmen, and led to America’s first major test of the Public Trust Doctrine.

Should oyster beds, thriving in the estuaries and inlets of the Atlantic Coast long before hominids evolved on the planet, be common holdings or private property? That was the question that river-bed oystermen took to the New Jersey Supreme Court in 1821.

To the surprise of both parties, in the landmark case of Arnold v. Mundy, a court of patrician men of wealth ruled for the commoners, and in so doing upheld the ancient principle of public trust. Twenty one years later, in Martin v. Waddell, the United States Supreme Court affirmed the New Jersey court’s interpretation of the public trust — another landmark case, because the public trust is not a federal doctrine.

A decade later came Eddy v. Simpson, where the California Supreme Court ruled that a property right in water “consists not so much of the fluid itself as the advantage of its use.” The “usufructuary” rule, first used to outlaw wasteful practices such as hydraulic gold mining and later to control the use of pesticides or heavy metals that found their way into streams and aquifers, is now widely interpreted to mean that all users of water are subject to a “beneficial use doctrine,” which prohibits unreasonable use or waste. This concept could conceivably be expanded to other elements of the commons, such as soil and public forests.

Then in 1892 came the granddaddy of them all. In Illinois Central Railroad v. Illinois, the U.S. Supreme Court held that a state legislature could not grant ownership of land under navigable waters to a private party, in this case the railroad, which had in effect been handed, fee simple, one thousand acres of Lake Michigan shoreline and underwater land — at the time, the entire waterfront of Chicago. In Illinois Central the court acknowledged a state’s right to sell non-public trust properties. But water and the ground beneath it “is a title held in trust for the people of the state, that they may enjoy the navigation of waters, carry on commerce over them and have liberty of fishing therein, freed from the obstruction or interference of private parties.”

It was a fitting finish for the nineteenth century. But as the Industrial Revolution accelerated and private property continued its ascendancy in the early twentieth, things slowed down for the concept of public trust. Courts looked the other way as state legislators granted and sold public properties, including shorelines, tidal flats, and wetlands, to residential developers, landfill operators, and industrial parks. If considered at all, the Public Trust Doctrine was used only against obstacles to commerce and navigation. Manufacturers with no reason to invest in costly toxic disposal dumped their waste into public waters, while courts enamored of free enterprise ignored the pleas of fishermen, swimmers, and other downstream water users. Gradually the public began to realize that relinquishing the public trust to corporate polluters was a bad deal.

In 1970 two things happened that placed the Public Trust Doctrine in a whole new light. Legal scholar Joseph Sax published a landmark article in the Michigan Law Review titled “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” In the article Sax opined that the Public Trust Doctrine could be used for more than protection of navigation and commerce. The doctrine should, he wrote, be expanded far beyond navigable water to protect the soil, air, and other species — things “so particularly the gifts of nature’s bounty that they ought to be preserved for the whole of the populace.”

And in April of that year, twenty million people came out to celebrate the first Earth Day. President Richard Nixon took notice that American voters were getting serious about the notion of having government protect the nation’s land, air, and water from deadly pollutants, and, with minor reluctance, signed into law the National Environmental Protection Act (NEPA) and later the Clean Water Act, Clean Air Act, Coastal Zone Management Act, Endangered Species Act, and legislation creating the Environmental Protection Agency.

As the environmental movement grew in strength and numbers, and its ability to mandate enforcement of the new federal laws improved, the green bar did rely on existing legislation and eschewed public trust litigation, until the legendary 1983 Mono Lake case — Audubon Society v. the Los Angeles Department of Water and Power — in which ecological preservation was held to justify a potentially major change in vested private property rights. The Department of Water and Power was drawing a substantial amount of water from the feeder streams supplying Mono Lake, causing the lake to recede at a rate that threatened the entire surrounding ecosystem.

The California Supreme Court, invoking the Public Trust Doctrine, ruled against Los Angeles and for the lake, extending the state’s public trust authority to the control of water diversions from non-navigable tributaries of a navigable lake. The decision asserted that common interest in some resources take precedence over long-term private use and invoked the principle of jus publicum — that certain resources are of so common a nature they defy private ownership. It was a triumphant expansion of existing case law, building on the 1971 California state Supreme Court case of Marks v. Whitney, which determined that public trust values included not only tidelands, lakes, rivers, and riverbeds, but also wildlife habitat, recreational value, and the sheer beauty of place.

The Department of Water and Power appealed to the U.S. Supreme Court, which refused to hear the case. The Mono Lake decision, later described by historian John Hart as “a judicial earthquake,” sent shock waves through the civil bar, which truly believed that water rights had been established as the functional equivalent of private property. The decision also signaled that the emerging science of ecology was beginning to impact the American judiciary, as well as public policy and the practice of environmental law. And it elevated the value of the general commons above the mundane interests of commerce and navigation.

However, Chief Justice Rose Bird and her colleagues who ruled for Mono Lake soon disappeared from the bench, voted out of power in one of the most vicious recall elections in California history. And today, every level of the judiciary, both state and federal, seems to be occupied by jurists who either remember the fate of Rose Bird or have forgotten the principles of public trust. So this may not be a good time to take any doctrine of the commons to court, particularly not the Supreme Court. The public trust should probably be reserved, as it was during previous periods of disfavor, for what environmental lawyer James Wheaton describes as “carefully selected, bite-sized victories.”

ALTHOUGH THE HUDSON RIVER VALLEY would hardly be described as a bite-sized ecosystem by the determined activists who toiled for years to reclaim its waters and shorelines from industrial polluters, in a sense it is. For it is one small corner of a badly polluted nation; one of thousands of Superfund sites existing in every state of the union. That said, the recent Hudson-Raritan initiative is a major triumph for more than three hundred river communities nationwide fighting to keep their water clean enough to swim and fish in.

The main weapon of the initiative was the Public Trust Doctrine and its ability to override prior legal claims. By applying the doctrine, water rights that were demonstrably harmful to the river and its estuaries could be confiscated, regardless of how old the claims were. Thus the rights claimed by corporate giants like General Electric, which for decades dumped millions of tons of polychlorinated biphenyls (PCBs), dioxins, and other toxic wastes into the Hudson River, were superseded by public trust case law, which asserts that tidal waterfront resources and wetlands held by the states in trust for the people include lands that are privately owned. Even when a state exercises its legal right to lease or sell such lands to private interests, as public trustee it may never relinquish the public’s rights in those lands, and it is duly bound by the Public Trust Doctrine to protect those rights.

This is undoubtedly a turn of good fortune for the idea of the commons. However, it should be noted that the doctrine of public trust can potentially be used to ill effect. Animal-rights advocates were certainly appalled by the aforementioned leg-trap cases. In the state of Washington in 1998, the jet ski industry argued that a county ban on personalized water craft on all marine waters and one lake was in violation of the Public Trust Doctrine. The Weeden v. San Juan County case went all the way to the state Supreme Court, which ruled for the county. And when a Texas-based oil exploration company was recently denied a permit to drill for crude in California, the company sought a reversal, arguing that domestic oil was, now more than ever, as vital to the public as water, and that it therefore deserved protection through the state’s exercising the Public Trust Doctrine. The case is pending.

As much as the idea of the commons may seem an integral part of the democracy Americans so proudly defend, it is a concept often ignored by environmental lawyers and frequently attacked by their opponents. Many steps have been taken over the past two hundred years to affrm and advance the Public Trust Doctrine as a tool for protecting pieces of our country where the public interest should prevail. But the long intervals between triumphant cases illuminate the glacial advance of any legal strategy that is up against the enormous forces of industrial expansion, urban sprawl, and the overwhelming judicial preference for private property.

There have been periods in every civilization when the Public Trust Doctrine was close to sacred, followed by periods when it was derided, ignored, or unknown. At this moment in America it appears to be somewhere between derided and ignored. But thankfully, there is still sentiment expressed in respectable law journals for enforcing a stricter doctrine and expanding the public trust to cover ecological resources in general. And attempts are being made to revive and reinvigorate it in the courtroom and law school, where judges and teachers alike are rediscovering the standards that have protected public interests for fifteen centuries.

OVER THOSE CENTURIES the boundary of public trust has gradually crept from the shorelines of the Roman Empire onto the beaches of Europe, up the rivers and riverbeds of America, onto the lakes, and into the tributaries of our water supplies, touching riparian banks, aquifers, marshes, feeder creeks, and springs. A district court on Long Island once declared that “the entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the [public] trust.” A few courts have even accepted dry land, natural beauty, cultural artifacts, wildlife, a historic battlefield, and a downtown area as public trusts. Louisiana’s constitution, like others, prohibits alienation of navigable river beds, but the state’s interpretation of public trust also includes, alongside air, sea, and river water, solar heat.

But if the doctrine is to cover higher ground, shouldn’t ecological integrity be established as a public trust right in all states, as it was in California by the Mono Lake decision? And can a doctrine that acknowledges the public’s right to possession of real property also support the public’s claim to electromagnetic spectra or intellectual property, and protect its interest in all aspects of the sometimes invisible larger commons?

Despite the fact that almost daily the Bush administration further relinquishes its responsibility to protect the environment, some well-meaning lawyers continue to believe that federal laws obviate the need for such a doctrine. But I wonder, is federal law or the federal government really as useful as it has been in the past for protecting the environment or defending the commons? Is the Endangered Species Act as powerful a tool as it was ten years ago? Can the Clean Water and Clean Air acts be wielded with the same force they have in the past? Is the Superfund succeeding? Not really.

It is of course difficult to argue a case for the commons against a federal government that develops energy policy in secret White House meetings, removes wilderness protection for millions of acres, allows snowmobiles back in national parks, and aggressively grants public-land exploration rights to private resource reapers. And although the powers of enforcement are implied in most interpretations of the doctrine, there is really no police force to defend the public trust — especially when public servants are not acting in the public’s best interest. The doctrine must therefore be wielded as a legal weapon by all who seek to protect the commons, a common tool for common folk.

After all, the nineteenth-century oyster wars were not won in the courtroom alone, nor was the shoreline of Chicago, Mono Lake, or the Waiahole Ditch. They were all preceded by the public protest of “commoners” demanding that government exercise its public trust mandate. It’s important to realize that public trust litigation is unlikely to succeed in the absence of community activism and public education. As public trust legal scholar Michael Warburton notes, “The Doctrine is too valuable a public resource to leave with the legal profession, particularly at a time when so few of my colleagues are defending public interests and resources are being privatized on a truly massive scale.”

And why shouldn’t a broad spectrum of protestors come out to protest the rampant enclosure of the commons that is unfolding today? It seems to me that this doctrine, and the whole notion of an expanded commons, should be able to transcend the traditional right-left, public-private divisions that have long plagued debate over property and the commons. We’re talking here about things that people of any and all political persuasions must value — air, water, privacy, silence, knowledge, sunlight, soil, and the essential inviolability of childhood.

In this regard it would be wise to view the Public Trust Doctrine as more than a legal construct, for it is also a philosophy, a way of thinking that sees the public good as an ideal to be pursued. Does not the fate of humanity lie, as it always has, in our care of the commons?

Two Massachusetts Eastern Coyotes at their den site

Eastern Wolf in Algonquin Provincial Park, Ontario, Canada

Aldo Leopold--3 quotes from his SAN COUNTY ALMANAC

"We abuse land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect."

Aldo Leopold

"A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise."

Aldo Leopold

''To keep every cog and wheel is the first precaution of intelligent tinkering."

Wildlife Rendezvous

Like so many conscientious hunters and anglers come to realize, good habitat with our full suite of predators and prey make for healthy and productive living............Teddy Roosevelt depicted at a "WILDLIFE RENDEZVOUS"

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